Freedom of information

R (on the application of Evans) v Attorney General: Court of Appeal, Civil Division: 12 March 2014

 Claimant seeking disclosure of Prince of Wales’s correspondence with government departments – Upper Tribunal (Administrative Appeals Chamber) ordering partial disclosure – Defendant Attorney General issuing certificate removing requirement for disclosure

The claimant journalist sought disclosure, under the Freedom of Information Act 2000 (the 2000 act) and the Environmental Information Regulations 2004, SI 2004/3391 (the regulations), of a number of written communications which passed between the Prince of Wales and various government departments in a period between September 2004 and April 2005. The departments refused disclosure and their decisions were upheld by the Information Commissioner. The claimant’s appeal was transferred to the Upper Tribunal (Administrative Appeals Chamber) (the UT).

In September 2012, the UT ruled that the communications should be disclosed to the extent that they fell into the category it defined as ‘advocacy correspondence’ (see [2012] UKUT 313 (ACC)). The defendant attorney general, as an ‘accountable person’ under section 53(8) of the 2000 act, issued a certificate, pursuant to section 53(2) of the act, which purported to override the decision of the UT and render it ineffective (the certificate).

The certificate was issued on the basis that, in his opinion, there had been no failure on the part of the government departments to comply with section 1(1)(b) of the 2000 act and regulation 5(1) of the Regulations (the opinion). In his statement of reasons, the attorney general had given the same reasons for his conclusion in relation to environmental and non-environmental information, but he had considered them sequentially and separately. The claimant’s application for judicial review of the certificate was dismissed and he appealed.

The claimant contended that: (i) the attorney general had failed to show ‘reasonable grounds’ for forming the opinion; (ii) the issue of the certificate was incompatible with European Union law, such that section 53(2) of the 2000 act had to be read and given effect as being without prejudice to the directly enforceable Community rights of persons having the benefit of those rights; and (iii) the entire certificate was tainted by the illegality which related to the environmental information.

The attorney general contended that the requirements of article 6(2) and (3) of Directive (EC) 2003/4 (on public access to environmental information and repealing Council Directive 90/313/EEC) were satisfied as, where a certificate was issued, the right to a review of the acts or omissions of the public authority concerned was satisfied by a right of judicial review of the certificate. Article 47 of the Charter of Fundamental Rights of the European Union was considered.

The appeal would be allowed.

(1) Whether a decision was ‘reasonable’ depended on the context and the circumstances in which it was made. Two opposing decisions or opinions might both be objectively reasonable. However, whether it was reasonable for one party to disagree with the reasonable decision or opinion of the other depended on the context and circumstances in which they were acting. It was not reasonable for an accountable person to issue a certificate under section 53(2) of the 2000 act merely because he disagreed with the decision of a tribunal.

The fact that a certificate involved making an evaluative judgment, rather than a finding of primary fact, was not material to whether the accountable person had reasonable grounds for forming a different opinion from that of the tribunal (see [37], [38], [82], [83] of the judgment).

In the instant case, the UT’s findings had not been challenged by the attorney general in his decision. He had simply disagreed with the evaluation made by the UT. That had been insufficient to amount to ‘reasonable grounds’ (see [40], [82], [83] of the judgment).

R v Secretary of State for the Home Department, ex p Danaei [1997] Imm AR 366 considered; R v Warwickshire County Council, ex p Powergen plc 96 LGR 617 considered; R (on the application of Bradley) v Secretary of State for Work and Pensions [2008] 3 All ER 1116 considered.

(2) Section 53(2) of the 2000 act, unless read as being without prejudice to the directly enforceable Community rights of persons having the benefit of those rights, was incompatible with article 6(2) and (3) of the Directive insofar as the information which was the subject of a decision notice was environmental information. There were three reasons why the existence of the right to seek judicial review of a certificate was not sufficient to meet the requirements of article 6(3) of the Directive.

First, the right to a judicial review of a certificate did not involve a departure from article 6(2) and (3) of the Directive, which could be described as merely a matter of form. Secondly, where a member state provided a procedure in accordance with article 6(2) of the Directive, it was incompatible with article 6(3) of the Directive for that state to confer on the executive a right to override a decision that was made in accordance with that procedure.

Thirdly, anyone whose EU law rights were violated had the right to an effective remedy before a tribunal which complied with the requirements of article 47 of the Charter. Accordingly, the certificate had been incompatible with EU law insofar as the information to which it related was environmental information (see [52], [54]-[57], [67], [82], [83] of the judgment).

(3) The claimant’s submission that the entire certificate was tainted by the illegality which related to the environmental information was well founded. It was clear that the attorney general had recognised that the distinction between environmental and non-environmental information had been of some relevance. That was why he had dealt with them separately, although he had not explained why he had done so.

However, there was nothing in the statement of reasons to indicate that he had been of the opinion that the non-environmental information should be withheld, even if the environmental information was to be disclosed. Still less had he explained why he had been of that opinion, if he had been. It was not a sufficient answer to point to the fact that the attorney general had dealt separately with the non-environmental and environmental information.

That mere fact had not demonstrated that he had considered how to strike the public interest balance in relation to the non-environmental information even if, contrary to his preference, the environmental information was to be disclosed (see [79], [80], [82], [83] of the judgment).  

The certificate had to be quashed, as the attorney general had not had reasonable grounds for forming the opinion on which it had been based and it was unlawful because it was incompatible with EU law (see [81]-[83] of the judgment). Decision of Divisional Court [2014] 1 All ER 23 reversed.

Dinah Rose QC, Aidan Eardley and Stephanie Palmer (instructed by Guardian News and Media Ltd) for the claimant; Jonathan Swift QC and Julian Milford (instructed by the Treasury Solicitor) for the attorney general; Timothy Pitt-Payne QC (instructed by the Information Commissioner’s Office) for the Information Commissioner.